Weiskind: Legal notice

for the provision of agency services in business transactions with business entities by weiskind GmbH, Fuggerstraße 7, 86150 Augsburg (hereinafter “Agency”). These General Terms and Conditions apply exclusively to business entities as defined in § 14 of the German Civil Code (BGB)

General Terms and Conditions (AGB)

§ 1 Scope, Contracting Parties, Definitions

1.1 These General Terms and Conditions (hereinafter “GTC”) apply to all contracts, deliveries, and services (hereinafter also “Work Products”) provided by weiskind GmbH, Fuggerstraße 7, 86150 Augsburg (hereinafter “Agency”), with its clients (hereinafter “Client” or “Customer”).

1.2 These GTC apply exclusively to business customers. A “business customer” within the meaning of these GTC is a natural or legal person or a partnership with legal capacity that, at the time of concluding the contract, is acting in the course of its commercial or self-employed professional activity (Section 14 of the German Civil Code (BGB)). The Agency does not enter into contracts with consumers within the meaning of Section 13 of the German Civil Code (BGB) on the basis of these GTC.

1.3 These General Terms and Conditions apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions of the Client shall only become part of the contract to the extent that the Agency has expressly agreed to their validity in writing. This requirement for consent applies in all cases, even if the Agency performs the service without reservation while being aware of the Client’s general terms and conditions.

1.4 Any individual agreements that the parties enter into in writing or in text form in the order or in other arrangements, which deviate from these General Terms and Conditions, shall take precedence over these General Terms and Conditions.

1.5 These General Terms and Conditions also apply to all future orders placed by the Client with the Agency, even if their applicability is not expressly referred to again in subsequent orders.

§ 2 Services Provided by the Agency

2.1 The Agency is a full-service agency and, within the scope of the specifically agreed-upon services, provides comprehensive consulting, conceptualization, creative, planning, and implementation services in the areas of marketing, communication, and brand management. Depending on the specific agreement, the Agency provides services in the following disciplines in particular:

• Brand positioning, brand strategy, and brand management
• Corporate design and corporate identity (CD/CI), naming, and design systems
• UI/UX design, digital products, websites, web applications, and platforms
• Customer experience (CX), customer journey design, and service design
• Lead generation, performance marketing, campaigns, media and content strategies
• Trade shows, events, and live communication (Fair & Events)
• Moving images, 3D/CGI visualization, photo and video production
• Consulting, concept development, copywriting, editing, and other communication services

2.2 The exact scope, objectives, deadlines, and compensation for the commissioned services are set forth in the Agency’s respective proposal, order, project plan, or service plan. Illustrations, specifications, and presentation content become part of the contract only if they are expressly listed in the order or in the order confirmation.

2.3 Unless otherwise specified in the Agency’s proposal, the Agency is obligated to provide the agreed-upon services in accordance with the principles of proper professional practice; however, it is not obligated to achieve any specific economic success (e.g., revenue, reach, or sales targets). The achievement of such success depends on numerous factors beyond the Agency’s control.

2.4 With regard to design and creative services, the Agency is entitled to reasonable creative and intellectual freedom within the scope of the agreed-upon scope of work.

2.5 The agency is entitled to engage suitable third parties (subcontractors, freelancers, production partners) to perform its services, provided that this is not precluded by an express obligation to perform the services personally or by overriding interests of the client.

§ 3 Offer and Conclusion of Contract

3.1 Offers made by the Agency are subject to change and, unless otherwise specified, are valid for four (4) weeks from the date of receipt by the Client. Upon expiration of this period, the Agency is no longer bound by the offer.

3.2 The contract is concluded upon the Agency’s order confirmation, but no later than the commencement of service performance. The scope of the services to be rendered is determined by the order placed by the Client and confirmed by the Agency.

3.3 Presentations, proposals, and pitches prepared at the Client’s specific request shall be compensated appropriately, unless otherwise agreed. The services, concepts, and ideas presented as part of a presentation remain the property of the Agency and subject to its rights of use and exploitation, unless a separate agreement has been reached and separate compensation has been paid.

§ 4 Provision of Services, Deadlines, and Approvals

4.1 The parties shall coordinate at reasonable intervals regarding the performance of the contracted services. The parties shall notify each other immediately of any deviations from agreed-upon services or procedures.

4.2 Deadlines and time limits are binding only if they are expressly designated as binding (“fixed”) in writing. Otherwise, they are target dates that may be adjusted within the framework of the collaboration.

4.3 The Agency shall submit the drafts and work products required for review and approval to the Client. The client is obligated to approve these in writing within five (5) business days upon request or to raise a substantiated objection, unless otherwise agreed. If no response is received within this period, the work shall be deemed approved. Deemed approval shall only apply if the agency has expressly informed the client in writing of the deadline and the consequences of silence when submitting the drafts.

4.4 Upon approval, the Client assumes responsibility for the accuracy and legal admissibility of the approved content (text, images, audio, data). The Agency shall publish and distribute content only after prior approval by the Client, unless otherwise agreed.

4.5 The Agency’s employees and other personnel shall not be integrated into the Client’s operations and shall not enter into an employment relationship with the Client.

§ 5 Changes to Services (Change Requests)

5.1 Both parties may propose changes to the agreed-upon services. The Agency shall review change requests within a reasonable period of time and submit an offer to the Client that includes the content of the changes, their impact on deadlines, and the adjustment to the compensation.

5.2 Changes shall not be deemed agreed upon until they have been confirmed by both parties in writing at a minimum. Until then, the original order remains in full force and effect. If a change request results in additional work, the Agency is entitled to request an adjustment to the compensation and schedule.

§ 6 Client’s Obligations to Cooperate

6.1 The Client shall provide the Agency with all information, documents, approvals, access data, materials, and contact persons necessary for the performance of the services free of charge, in full, truthfully, and in a timely manner, unless the Agency is expressly responsible for obtaining them.

6.2 The Client warrants that the content, templates, trademarks, samples, and documents provided by it are free from any third-party rights that would preclude their use in accordance with the contract. The Client shall indemnify the Agency against all claims by third parties—in particular those arising from competition law, copyright law, trademark law, personality rights, and data protection law—as well as against the costs of a reasonable legal defense, to the extent that such claims are based on content supplied or approved by the Client.

6.3 The Client is solely responsible for ensuring that the processing of personal data on its websites complies with applicable regulations, in particular the GDPR (e.g., obtaining necessary consents, providing data protection-compliant information to data subjects).

6.4 If the Client fails to fulfill its obligations to cooperate in a timely manner, the Agency shall not be liable for any resulting delays or loss of quality. If this results in additional work for the Agency, such work shall be compensated separately based on the agreed-upon terms (e.g., hourly rates).

§ 7 Compensation, Third-Party Services, and Payment

7.1 Compensation is based on the respective agreement; it may be agreed upon as a lump sum, based on time spent (hourly rates), or in any other manner. All prices are net prices plus the applicable statutory value-added tax, unless otherwise specified in the offer.

7.2 Special and additional services that are not part of the original order require prior authorization, at least in writing, and will be billed separately.

7.3 The Agency is authorized, subject to prior consultation, to commission necessary external and third-party services (e.g., licenses, image, film, music, and software rights, media, production) in the name and on behalf of the Client. The Client grants the Agency power of attorney for this purpose and, in their internal relationship, indemnifies the Agency against any corresponding claims for compensation by third parties. A separate agency fee may be agreed upon for production supervision and coordination of external services.

7.4 Travel, lodging, and incidental expenses for services rendered on-site are not included in the compensation and will be reimbursed on a time-and-materials basis upon presentation of receipts.

7.5 Unless otherwise agreed, invoices are due for payment without deduction within eight (8) days of receipt. In the event of default, the Client shall owe default interest at a rate of nine (9) percentage points above the base interest rate (Section 288(2) of the German Civil Code (BGB)) as well as the statutory flat-rate default charge of EUR 40.00 (Section 288(5) BGB), provided the statutory requirements are met. We reserve the right to claim further damages resulting from default.

7.6 Set-off is permitted only with respect to undisputed, legally enforceable, or final and binding counterclaims. The Client may assert a right of retention only to the extent that it is based on the same contractual relationship or the counterclaim is undisputed, legally enforceable, or final and binding.

7.7 If the Client cancels or postpones agreed-upon appointments, workshops, productions, shoots, trade show appearances, events, or other contracted services for reasons not attributable to the Agency, the Client shall bear the costs of services rendered up to that point, obligations already incurred, non-cancelable third-party and travel expenses, as well as a reasonable cancellation fee. In the event of cancellation less than ten (10) business days before the scheduled date, the Agency may charge 50% of the fee agreed upon for the affected date; in the event of cancellation less than three (3) business days before the scheduled date, the Agency may charge 80% of the fee agreed upon for the affected date. The Client reserves the right to prove that the actual damages were lower, and the Agency reserves the right to prove that the actual damages were higher.

§ 8 Copyright and Rights of Use

8.1 The services and work products created by the Agency—including concepts, drafts, layouts, designs, texts, graphics, photo, film, and 3D/CGI material, as well as software (hereinafter “Works”)—are subject to copyright and related rights. All rights of use and exploitation initially belong to the Agency.

8.2 The Client shall not acquire rights of use to the works until full payment of the remuneration due for them has been made. Until then, any use, reproduction, distribution, or making available to the public is permitted only with the Agency’s prior consent.

8.3 Unless otherwise agreed, upon full payment, the Agency grants the Client a non-exclusive, non-transferable right to use the approved works for the contractually agreed purpose, within the agreed territory, and for the agreed duration. The grant of rights extends only as far as required by the agreed-upon purpose of use (principle of purpose-based transfer, Section 31(5) of the German Copyright Act (UrhG)).

8.4 Any use beyond the agreed-upon purpose, any adaptation or alteration, the granting of sublicenses, and the transfer of rights to third parties require a separate written agreement and separate, reasonable compensation.

8.5 If the client is to be granted an exclusive right of use that is comprehensive in terms of time, territory, and content (full buyout of rights), this requires an express written agreement and separate compensation. Buy-out provisions shall be agreed upon transparently and in accordance with Sections 32 and 32a of the German Copyright Act (UrhG) (right to reasonable or additional compensation).

8.6 If the acquisition of third-party rights (e.g., image, film, music, GEMA, personality rights, stock, or software licenses) is necessary for the creation or implementation of the deliverables, the Agency shall obtain these—to the extent agreed—in the name and on behalf of the Client and only to the extent necessary for the specific project. Any claims for additional compensation pursuant to Sections 32, 32a of the German Copyright Act (UrhG) shall be borne by the Client.

8.7 If the Agency develops software, the source code and development documentation are not included in the grant of rights. The transfer of the source code requires a separate agreement and payment. Modifications, adaptations, decompilation, disclosure, or resale of the transferred software are permitted only with the Agency’s consent, unless they are necessary for use in accordance with the contract or are expressly permitted by law, in particular under Sections 69d and 69e of the German Copyright Act (UrhG).

8.8 Rights of use and ownership of rejected, unexecuted, or unpaid-in-full drafts and services remain with the Agency. This also applies to services that are not subject to any statutory intellectual property rights.

8.9 The agency is obligated to deliver only the final, agreed-upon, and approved deliverables. Unfinalized layout and working files, raw data, interim results, source materials, project files (e.g., unfinalized InDesign, Photoshop, After Effects, or 3D/CGI project files), and internal documentation will only be handed over if this has been expressly agreed upon and separately compensated. Statutory claims for handover remain unaffected.

§ 9 Use of Artificial Intelligence (AI)

9.1 The Agency is entitled to use AI-supported software solutions and generative AI systems to provide its services. Upon request, the Agency shall inform the Client of the nature and scope of any AI use that is essential to the specific work deliverables.

9.2 The parties acknowledge that, under current law, results generated exclusively or predominantly by AI may not be subject to protection under copyright or related rights. The Agency grants the Client rights of use to AI-generated results only to the extent that it itself acquires rights to such results.

9.3 The Client acknowledges and agrees that providers of AI systems may, where applicable, grant themselves non-exclusive rights of use to the generated results. The Agency shall, to the extent possible, utilize the data protection and confidentiality options provided by the providers.

9.4 The Agency will only enter the Client’s confidential information and personal data into AI systems where the provider guarantees that the data will not be used for training purposes, or where the data is anonymized or the information is already publicly available. The Client may object in writing at any time, with future effect, to the entry of its confidential information into AI systems.

9.5 Due to the current legal uncertainties, the Agency does not guarantee that AI-generated results can be used without restriction in a legally permissible manner, particularly with regard to the existence and granting of usage rights, as well as compliance with competition law, privacy law, and intellectual property law provisions. The Agency’s liability in this regard is limited in accordance with § 13. The client remains responsible for assessing the suitability of the results for the intended purpose; the Agency will provide appropriate support in this regard.

§ 10 Confidentiality and Non-Disclosure

10.1 The parties agree to treat all confidential information and trade secrets of the other party obtained in the course of the business relationship as confidential within the meaning of the Trade Secrets Act (GeschGehG), to use such information solely for the purposes of this Agreement, and not to disclose it to third parties without consent.

10.2 In particular, the following shall be deemed confidential: strategies, concepts, calculations, customer and project data, technical and business information, as well as all documents marked as confidential or that are recognizably confidential. Excluded from this are information that is generally known, was lawfully obtained from third parties, or was developed independently.

10.3 The obligation of confidentiality shall continue even after the termination of the contract. The parties shall implement appropriate confidentiality measures within the meaning of Section 2 No. 1 of the German Business Secrets Act (GeschGehG) and shall impose corresponding obligations on employees and third parties involved.

10.4 The disclosure of confidential information to subcontractors and vicarious agents is permitted to the extent that it is necessary for the performance of the contract and provided that such parties are bound by a corresponding confidentiality obligation.

10.5 The Client agrees not to actively solicit or directly employ, without the Agency’s consent, any employees, freelancers, or subcontractors of the Agency who were involved in the project, either during the term of the contract or for twelve (12) months following its termination. This does not apply to responses to general job postings not specifically directed at these individuals. For each culpable breach, the Agency may demand an appropriate contractual penalty, the amount of which may be reviewed by the competent court in the event of a dispute.

§ 11 Data Protection and Data Security

11.1 The Agency processes personal data exclusively in accordance with the provisions of the GDPR and the BDSG. To the extent that the Agency processes personal data on behalf of the Client, such processing shall take place only after the conclusion of a data processing agreement pursuant to Art. 28 GDPR, unless a valid framework agreement already exists. The data processing agreement governs, in particular, the subject matter, duration, nature, and purpose of the processing, types of data, categories of data subjects, instructions, technical and organizational measures (TOM), confidentiality, subprocessors, transfers to third countries, obligations to provide support, erasure/return, and rights of audit.

11.2 The Agency protects personal and confidential data through appropriate technical and organizational measures (TOM) that reflect the current state of the art. Mobile and remote work are subject to heightened information security requirements, for which specific protective measures are implemented.

11.3 The Client shall create backup copies of the data and materials provided to the Agency. The Agency shall regularly back up the systems it uses in accordance with the state of the art; in the event of data loss, the Client is obligated, upon request, to resubmit the affected data sets free of charge.

11.4 The Agency shall immediately inform the Client of any security incidents or breaches of personal data protection that come to its attention, to the extent that the Client’s data is affected, and shall assist the Client to the extent required by law. Upon termination of the engagement, the Agency shall return personal data at the Client’s discretion or delete it, provided that no statutory retention obligations or legitimate rights of retention preclude such action.

11.5 Details regarding data processing, TOM, and retention are set forth in the respective engagement agreement, the data processing agreement, and the Agency’s privacy policy.

§ 12 Acceptance and Liability for Defects (Warranty)

12.1 If the Agency is obligated to deliver a work ready for acceptance, the Client is obligated to accept it. Acceptance is deemed to have taken place if it is not declared in writing or refused with specific details of defects within eight (8) business days of delivery, provided that the work substantially complies with the agreements. Acceptance is deemed to have taken place at the latest upon use or payment. Deemed acceptance shall only apply if the Agency has expressly notified the Client in writing upon delivery of the deadline and the consequences of silence.

12.2 Complaints that relate solely to the Agency’s creative and intellectual freedom of design do not constitute a material defect, provided that the service remains within the agreed scope.

12.3 Defects must be reported to the Agency in writing immediately upon discovery. In the event of justified complaints regarding defects, the Agency shall, at its discretion, remedy the defect by repair or replacement. In all other respects, the statutory provisions governing liability for defects shall apply, provided that claims for defects shall be barred after twelve (12) months from acceptance; in the case of services that cannot be accepted, the limitation period shall begin upon delivery or performance of the service. This shortened limitation period does not apply to claims arising from willful misconduct or gross negligence, injury to life, limb, or health, fraudulent concealment of a defect, a warranty that has been assumed, the Product Liability Act, or claims for which longer limitation periods are mandatory under law; in such cases, the statutory limitation periods apply.

12.4 The Agency is not obligated to verify the legal admissibility of the work results (in particular with regard to competition law, trademark law, copyright law, and personality rights), unless such verification is expressly agreed upon as a service. The Agency is not responsible for the registrability or protectability of the work results (e.g., as a trademark or design), unless this is expressly agreed upon.

§ 13 Liability and Limitation of Liability

13.1 The Agency shall have unlimited liability on any legal basis in cases of willful misconduct and gross negligence, in cases of culpable injury to life, limb, or health, within the scope of a warranty it has assumed, and in accordance with mandatory statutory provisions, in particular the Product Liability Act.

13.2 In cases of simple (minor) negligence, the Agency shall be liable only for the breach of a material contractual obligation (cardinal obligation). Essential contractual obligations are those whose fulfillment is essential for the proper performance of the contract and on whose compliance the client may reasonably rely. In this case, liability is limited to damages typical for the contract and foreseeable at the time the contract was concluded.

13.3 In all other cases of simple negligence, the Agency’s liability is excluded. This applies in particular to indirect damages, consequential damages, lost profits, and other purely financial losses, unless liability exists under Section 13.1 or an essential contractual obligation within the meaning of Section 13.2 has been breached. In the cases covered by Section 13.2, liability is limited to damages typical for the contract and foreseeable at the time the contract was concluded.

13.4 If the Agency engages vicarious agents to fulfill its own contractual obligations, it shall be liable for their negligence in accordance with statutory provisions, but only to the extent of the foregoing limitations of liability. If, on the other hand, the Agency commissions third-party services on behalf of and for the account of the Client or at the Client’s express instruction, it shall be liable only for the proper selection, commissioning, and coordination of such services, to the extent that the Agency is obligated to provide them. The Agency assumes no liability for independent services provided by third parties over which the Agency has no control (e.g., hosting providers, platforms, social networks, payment, stock, software, or AI providers); any claims are governed by the terms and conditions of the respective third-party provider.

13.5 The Agency is not liable for the legal admissibility (in particular under competition, trademark, copyright, personality rights, or data protection laws) of content, specifications, or materials provided, specified, or approved by the Client, unless the legal violation is due to a culpable breach of duty by the Agency or the legal review was expressly part of the assignment. The Agency will notify the Client of any obvious legal violations that come to the Agency’s attention during the proper performance of its services. The Client shall indemnify the Agency against any claims by third parties in this regard.

13.6 The Agency shall not be liable for damages resulting from force majeure or other events for which it is not responsible (e.g., strikes, government orders, failure of communication networks). For the duration and to the extent of such events, the Agency is released from its obligation to perform.

13.7 The foregoing liability provisions also apply in favor of the Agency’s legal representatives, employees, and vicarious agents, as well as to claims for reimbursement of futile expenses.

§ 14 Retention of Title and Duty of Safekeeping

14.1 Until the remuneration owed has been paid in full, the delivered work products remain the property of the Agency; the rights of use granted in respect thereof are subject to full payment (see § 8.2).

14.2 Right of Retention in the Event of Late Payment: As long as the Client has not paid all due fees in full, the Agency is entitled to retain any documents, data, and materials provided to it by the Client. This right of retention serves to secure the Agency’s payment claims.

14.3 Storage of Materials Provided: The Agency shall store physical materials provided by the Client (e.g., product samples, templates, data storage media, props) with the same care it exercises in its own affairs. The Agency is not obligated to store these materials indefinitely and may, twelve (12) months after completion of the relevant service and upon prior notification to the Client, return them to the Client or—if return is not possible within a reasonable period—destroy them. This provision relieves the Agency of an indefinite obligation to store such materials and applies exclusively to third-party materials provided by the Client.

14.4. Retention for Documentation and Evidence Purposes: Notwithstanding the foregoing provisions, the Agency is entitled to retain its own project documents and work products—including concepts, drafts, presentations, approvals, correspondence, and other documents documenting the course of the project—even beyond the term of the contract for the duration of the statutory limitation periods. This serves to provide evidence of proper performance of services and to comply with statutory retention obligations. Confidentiality and data protection obligations (Sections 10, 11) remain unaffected.

§ 15 Term of the Contract and Termination

15.1 The term of the contract is specified in the respective order. Project contracts end upon acceptance or upon full performance of the services; continuing obligations end upon expiration of the agreed term, unless an extension is agreed upon.

15.2 The right of both parties to terminate the contract for good cause remains unaffected. Good cause exists, in particular, in the event of a significant deterioration in the Client’s financial circumstances, a significant delay in payment, or the initiation of insolvency proceedings. If the Client terminates an approved order prematurely without good cause, § 648 of the German Civil Code (BGB) applies with respect to compensation.

15.3 Notices of termination must be provided in writing at a minimum.

§ 16 Citation of References and Self-Promotion

16.1 The Agency is entitled to use the work results produced for the Client, citing the Client’s name, for the purposes of self-promotion (e.g., on its website, in presentations, portfolios, awards, and social media channels) and to present them to third parties, provided this has not been expressly excluded in writing and does not conflict with the Client’s legitimate confidentiality interests.

16.2 The Agency is entitled to indicate its authorship in a discreet manner customary in the industry; the placement and scope shall be agreed upon with the Client.

§ 17 Dispute Resolution and Mediation

17.1 The parties shall first endeavor to resolve any disputes arising out of or in connection with the contract by mutual agreement at the management level.

17.2 If the parties are unable to settle a dispute by mutual agreement within thirty (30) days of written notification of the dispute, a conciliation proceeding shall be conducted before the conciliation board of the Chamber of Industry and Commerce (IHK Schwaben) with jurisdiction over the agency’s registered office, or before a conciliation board mutually agreed upon by the parties, prior to filing a lawsuit. An action may be brought before a court of general jurisdiction if the conciliation proceedings have been unsuccessful or have not been concluded within three (3) months of the matter being referred to the conciliation board.

17.3 Measures of preliminary legal protection and preliminary injunctions, independent evidence proceedings, the judicial dunning procedure, and measures to suspend the statute of limitations remain permissible at any time and without prior conciliation proceedings.

17.4 Liability and limitations of liability are governed exclusively by § 13; in particular, the exclusion of liability for pure financial losses is conclusively set forth in § 13.3.

§ 18 Governing Law and Jurisdiction

18.1 All legal relationships between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and, to the extent permitted, excluding conflict-of-laws rules.

18.2 If the Client is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be the Agency’s registered office in Augsburg. However, the Agency is also entitled to bring an action at the Client’s general place of jurisdiction.

§ 19 Final Provisions

19.1 Amendments and additions to the contract must be made in writing at a minimum. This also applies to the waiver of this written form requirement. The priority of individual agreements (§ 305b BGB) remains unaffected.

19.2 The Client’s rights and obligations under this Agreement may not be transferred to third parties without the Agency’s prior consent. Section 354a of the German Commercial Code (HGB) and statutory transfers of claims remain unaffected.

19.3 Exclusivity with respect to an industry, client, or competitor shall apply only to the extent that it has been expressly agreed in writing. Confidentiality obligations remain unaffected.

19.4 Should individual provisions of these General Terms and Conditions be or become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. The invalid or unenforceable provision shall be replaced by the applicable statutory provisions. Section 306 of the German Civil Code (BGB) remains unaffected.

19.5 The German-language version of these General Terms and Conditions is authoritative; translations are provided for informational purposes only.

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